The Fairness for High-Skilled Immigrants Act (H.R. 3012), sponsored by Congressman Jason Chaffetz (UT-03), passed the House of Representatives by an overwhelming vote of 389 to 15 on November 29, 2011.

Currently, the total number of employment-based immigration visas made available in any foreign country cannot exceed 7 percent of the total number of such visas made available for each category (EB-1, EB-2, EB-3, etc.) in that year, and this act will eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

Current Work Visa Systems

According to section 201 of the Immigration and Nationality Act, there are 140,000 work visas are given to alien workers each fiscal year. Each of the EB-1, EB-2 and EB-3 category shares 28.6% of the total numbers, which is 40,040 visa numbers.

Among them, even with the per-country cap, all countries’ priority dates are current regarding EB-1 visa, which means no country has used all the visa numbers. All the unused numbers are passed to EB-2 category.

Regarding EB-2, there are also 40,040 visas available each fiscal year and each country cannot have more than 2803 visas due to the 7% per-county limit. However, the actual number is higher than that because there are many unused EB-1 visa numbers are passed to the EB-2 category.

Due to the significant number of Chinese and Indian beneficiaries, China and India easily meet the per-country limit each year. However, if the total number of EB-2 visa is not fully used, the rest of the visa numbers will still go to Chinese and Indian beneficiaries. Obviously, that is still not enough to let all Chinese and Indian beneficiaries to get the visa since the cut-off dates for Chinese and Indian EB-2 workers are still in 2008. In that case, all EB-2 visa numbers are used and there is no more to spare with EB-3 workers.

It’s as if the situation of boarding trains. The EB-1 is like the bullet train and the EB-2 is like regular train. When all bullet train passengers are admitted, the coordinator will give the rest of the seats to regular train passengers.

As for the regular train passengers, travelers from each country are designated to one carriage. When the signal is on, all passengers start to board. When the two carriages for Chinese and Indian travelers are full, the passengers from those two counties who are not onboard need to wait while passengers from other countries are still boarding. When the train is leaving and the coordinator is sure that there are no more passengers from countries other than China and India, she will let Chinese and Indian passengers board other carriages which still have seats. When all seats are occupied the regular train will leave and the Chinese and Indian passengers who do not have a chance to board have to wait for the next train.

Potential Impacts:

• Total Numbers of EB-1 and EB-2 visas

The act does not increase the total 140,000 visa numbers for employment-based immigrants.

• Influence on Cut-off Date of EB-2
• The bill is beneficial for current and potential EB-2 beneficiaries from India and China. Removing the per-country cap means beneficiaries from those two countries can break the limit and obtain more visa numbers each fiscal year. It will directly accelerate the current marching speed of those countries’ cut-off date.
• In the meantime, the act will also influence immigration workers from countries other than China and India. The removal may allow Chinese and Indian workers to get the visa numbers that used to belong to other nationals.
• There is no doubt that without the per-country limit, the employment-based immigration visa numbers will be fully used and there will be a cut-off date for EB-2 beneficiaries from every country.

Let’s take the train example. When the “one nation, one carriage” policy is lifted, passengers from every country will get into one line to board the train from the first carriage to the last carriage according to the new “first come, first served.” policy. When all seats are occupied, the passengers get left behind are not only from China and Indian, but also from other countries.

Current Status of the Bill

The passage through the House of Representatives does not mean the bill will be effective. It still needs to pass through the Senate and get signed by the President. In fact, Senator Grassley (R-IA) has already put a hold on the bill on November 30th, and the voting procedure has been delayed. The senator has “concerns about the impact of this bill on future immigration flows” and is “concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.”

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(12/02/2011)